Smt. Sushila Singh vs State Of U.P. Thru Secy. Civil ...
2019 Latest Caselaw 4180 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 26/Reserved                                                 AFR
 

 
Case :- SERVICE SINGLE No. - 2709 of 2007
 
Petitioner :- Smt. Sushila Singh
 
Respondent :- State Of U.P. Thru Secy. Civil Aviation & 2 Ors.
 
Counsel for Petitioner :- U.P. Singh,Paras Nath Singh,Prem Shanker Pandey
 
Counsel for Respondent :- C.Sc..,Aprajita Bansal
 

 
Hon'ble Rajnish Kumar,J.

1. Heard, Shri Paras Nath Singh, learned counsel for the petitioner, Shri Vivek Verma, learned Standing Counsel for opposite party no.1 and Ms. Aprajita Bansal, learned counsel for opposite parties no.2 and 3.

2. The facts, in brief, for adjudication of the controversy in hand are that the husband of the petitioner had joined the service in the Civil Aviation Department as a Class-IV employee in 1988. Later on he was promoted on the post of driver and continued in service till his death. The husband of the petitioner died during service period on 28.07.2006 leaving behind the petitioner and one minor daughter who had no source of income as the husband of the petitioner was the only bread earner of the family.

3. The petitioner, being an unemployed lady and dependent on her husband, had applied for compassionate appointment under the dying in harness rules. The petitioner was offered an appointment on the post of Clerk on 13.10.2006 under the Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 ( hereinafter referred as Rules 1974) and Rule 5 of the Uttar Pradesh Government Servants Dependants (Third Amendment) Rules 1993 subject to the Uttar Pradesh Civil Aviation Department (Operation Unit) Recruitment Rules, 2001 (hereinafter referred as Rules 2001) on a fixed remuneration of Rs.4500/- per month for a period of five years on contract basis from the date of joining. Since the petitioner was appointment on contractual basis she made a representation on 02.01.2007 against the condition imposed in offer of appointment but no decision was taken therefore the petitioner had joined the services under protest. She approached this Court challenging the order dated 13.10.2006 by which the petitioner has been appointed under dying in harness rules and the order dated 20.11.2006 by means of which the petitioner was asked to vacate the Government house allotted to the husband of the petitioner. The petitioner has further prayed for a direction to treat the appointment of petitioner as a regular appointment under the rules without any condition and pay her salary and other consequential benefits as it is paid to the other regular employees. The petitioner had also prayed for a direction to allot the residential premises in the name of the petitioner.

4. The opposite party has filed the counter affidavit in which the appointment of the petitioner, by means of the order dated 13.10.2006, has been admitted and it has been stated that the petitioner was appointed on contract basis initially for a period of five years subject to extension by the appointing authority on the request so made by the petitioner who has been appointed on contract basis. The remuneration of the Clerk has been revised as Rs.8000/- per month vide G.O dated 13.08.2007 and the petitioner is getting the same. It has further been stated that the petitioner has been appointed on contract basis in accordance with Rule 13 of the Uttar Pradesh Civil Aviation Department (Operation Unit) Recruitment Rules, 2001 as notified in the gazette vide notification dated 22.10.2002. The said rule provides that the period can further be extended by the appointing authority on the request of the person appointed on contract basis, accordingly the period would be extended in the case of petitioner also. It has been stated that the petitioner on her own free will had joined on the post of Clerk in pursuance of the order of appointment dated 13.10.2006 and she had submitted the joining on 02.01.2007 unconditionally and once having accepted the terms of appointment, she is bound by the terms.

5. In regard to the prayer regarding allotment of the house in which she was residing which was alloted to her husband, it has been stated that the house in question, has been allotted to her by means of office order dated 19.01.2007.

6. In the rejoinder affidavit the petitioner has averred that the Rules 2001 has no application over the Rule 1974 and the petitioner is entitled for appointment against regular post on regular basis and not for fixed term on contract basis.

7. Supplementary counter affidavit has been filed by the respondents stating therein that as per policy decision taken by the State Government the Department of Civil Aviation has been reorganized into three independent units w.e.f 08.06.2001 viz No.1- Operation Unit, No.2- Uttar Pradesh Flying Training Institute, Kanpur and No.3-Maintenance Security and General Administration Unit. As per the policy decision all the appointments after the said date have to be made only on contractual basis. It was also provided for the persons who were working in the Civil Aviation Department at that time that they shall be entitled such allowances which were admissible at that time and they shall continue to draw the then existing pay and allowances till such time they submit their option for contractual appointment. Accordingly all the posts existing at that time were abolished and posts for appointment on contractual basis on payment of remuneration were created in pursuance of the said policy decision of the State Government. The service rules were also notified in the extraordinary gazette dated 20.10.2001 which are applicable in the case of the petitioner. It has also been stated that the remuneration of the petitioner has been enhanced and she was getting Rs.9426/- vide office order dated 22.10.2014. Further it has been stated that office order dated 30.09.2015 was issued in which it has been provided that 5% remuneration would be enhanced every year. The petitioner was getting her remuneration at serial No.16, on 02.01.2007 as Rs.9426/-. She has been granted annual increment of 5% in terms of G.O. dated 09.08.2014 and she is getting Rs.20397/- w.e.f 09.09.2015. Lastly, it has been stated that the petitioner's services are governed by the Rules 2001 and the terms of appointment mentioned in the order of appointment.

8. The petitioner has not filed any supplementary rejoinder affidavit controverting the averments made in supplementary counter affidavit.

9. Submission of learned counsel for the petitioner is that the husband of the petitioner had died during service. Therefore the petitioner, after considering her application, has been appointed on the post of Clerk under the dying-in-harness Rules, 1974, but the respondents have arbitrarily and illegally appointed the petitioner on contractual basis. Whereas the appointment under dying-in-harness is always made on permanent basis as the dying-in-harness rules does not contemplate appointment on contractual basis because dying-in-harness rules provides appointment on permanent basis only. The respondents have wrongly and illegally applied the Rules 2001 to appoint the petitioner on contractual basis therefore the action of the respondents is against the spirit of dying-in-harness rules.

10. He further submitted that the spirit of the rules is that the case of dependent of an employee should be considered sympathetically who passed away in harness which is inconsonance with the directive principles regarding right to work and adequate means of livelihood and social security, as such it is bounden duty of the authority to provide employment to the petitioner without making any unjust and unreasonable condition. Therefore, the order dated 13.10.2006 to the extent of condition limiting the appointment of the petitioner only for five years and fixing the salary accordingly is liable to be quashed and opposite parties be directed to treat the appointment of the petitioner as regular appointment under rules without any condition and pay her salary and other consequential benefits as it is paid to the regular employees.

11. Learned counsel for the petitioner has relied on Smt. Sushma Gosain and Others Vs. Union of India and Others; (1989) 2 UPLBEC 636, Smt. Leelamma Nair Vs. State of U.P. and Others; 2000 (1) LBESR 740 (ALL) (LB), Om Prakash Vs. Superintending Engineer Nalkoop and Others; 2001 (1) LBESR 116 (ALL) and Smt. Puspa Devi Vs. State of U.P. and Others; (2012) 2 UPLBEC 1015.

12. Per contra, learned counsel for the opposite party nos.2 and 3 submitted that considering the application of the petitioner sympathetically she has been appointed under the dying-in-harness rules readwith the Uttar Pradesh Civil Aviation Department (Operation Unit) Recruitment Rules, 2001 on a fixed remuneration of Rs.4500/- per month for a period of five years on contract basis which is subject to extension and the same has been extended time to time. The petitioner had joined in pursuance of the appointment order without any protest and after entering into the contract she can not challenge the terms and conditions of her appointment. The petitioner and similarly situated persons are continuing and their term are being extended and the pay is being revised time to time.

13. She further submitted that the petitioner has been appointed in accordance with the concerned service Rules 2001 which have been framed under Article 309 of the Constitution of India. The appointment under the said rules can only be made through regular process but on contract basis. The dying-in-harness rules is to mitigate the situation in case of the death of a bread earner of the family to provide an appointment to a family member without going into rigours of appointment. The dying-in-harness rules provides for a suitable appointment to a family member but not a permanent appointment.

14. She further submitted that the judgments relied by the learned counsel for the petitioner are not applicable on the facts and circumstances of the present case as in the present case the service rules provides only for contractual appointment. The validity of the rules, on being challenged, has been upheld by this Court vide judgment and order dated 06.6.2002 passed in Writ Petition No.887 (S/B) of 2002; Captain Anjit Singh Vs. State of U.P and Another.

15. On the basis of above, learned counsel for the respondent nos.2 and 3 submitted that the writ petition has been filed on misconceived and baseless grounds and there is no error in the order dated 13.10.2006 therefore the writ petition is liable to be dismissed.

16. The State Counsel has also made the similar arguments and submitted that the appointment of the petitioner has rightly been made in accordance with the rules, the validity of which has been upheld by this Court.

17. I have considered the submission of learned counsel for the parties and perused the material available on record.

18. The husband of the petitioner had died during service. The petitioner had applied for appointment under dying-in-harness on compassionate ground. After considering the application of the petitioner, she was appointed on the post of clerk by means of order dated 13.10.2006, under the Rules 1974 and Rule 5 of third amendment Rules 1993 readwith concerned Service Rules 2001 on the post of clerk on a fixed remuneration of Rs.4500/- per month on contract basis for a period of five years. Admittedly the pay of the petitioner is being revised time to time. As submitted by the respondents the petitioner and similarly appointed persons are continuing and their term would be extended time to time in accordance with the rules.

19. The petitioner has accepted the appointment and joined on the post in question but challenged the order dated 13.10.2006 to the extent of conditions limiting the appointment of the petitioner only for five years and fixing the salary to Rs.4500/- per month on the ground that such condition can not be imposed on the appointment which is made on compassionate ground under dying-in-harness rules.

20. The appointment order dated 13.10.2006 indicates that the petitioner has been appointed on compassionate ground under the Rules 1974 and Rule 5 of third amendment Rules 1993 readwith concerned Service Rules of 2001.

21. In view of above the question for consideration by this Court would be as to whether the appointment can be made on compassionate ground under dying-in-harness rules independently or the concerned service rules would be applicable in such appointment subject to relaxation as provided under Rules 1974.

22. The relevant Rule 5 and 8 of the Rules 1974 are reproduced as under:-

"[5. Recruitment of a member of the family of the deceased. - (1) In case a Government servant dies in harness after the commencement of these rules and the spouse of the deceased Government servant is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government, one member of his family who is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government shall, on making an application for the purposes, be given a suitable employment in Government service on a post except the post which is within the purview of the Uttar Pradesh Public Service Commission, in relaxation of the normal recruitment rules, if such person-

(i) fulfils the educational qualifications prescribed for the post,

(ii) is otherwise qualified for Government service, and

(iii) makes the application for employment within five years from the date of the death of the Government servant:

Provided that where the State Government is satisfied that the time limit fixed for making the application for employment causes undue hardship in any particular case, it may dispense with or relax the requirement as it may consider necessary for dealing with the case in a just and equitable manner.

(2) As far as possible, such an employment should be given in the same department in which the deceased Government servant was employed prior to his death.]

8. Relaxation from age and other requirements. - (1) The candidate seeking appointment under these rules must not be less than 18 years at the time of appointment.

(2) The procedural requirements for selection, such as written test or interview by a selection committee or any other authority, shall be dispensed with, but it shall be open to the appointing authority to interview the candidate in order to satisfy itself that the candidate will be able to maintain the minimum standards of work and efficiency expected on the post.

(3) An appointment under these rules shall be made against an existing vacancy only."

23. The aforesaid Rule 5 provides that in case a Government servant dies in harness after commencement of this rule and the spouse of the deceased Government servant is not already employed under Central Government or State Government or a Corporation owned or controlled by Central Government or State Government, one member of his family who is not already employed under the Central Government or State Government or a Corporation owned or controlled by Central Government or State Government shall, on making an application for the purpose be given a suitable employment in Government Service on a post except the post which is within the purview of Uttar Pradesh Public Service Commission, in relaxation to the normal recruitment rules if such person fulfills the educational qualification prescribed for the post subject to the proviso. The Rule 8 provides regarding relaxation from age and other requirements such as procedural requirements for selection but the appointment is to be made against an existing vacancy only.

24. In view of above, the appointment under Rule 5 can be made on compassionate ground on a suitable post except on post which is within the purview of Public Service Commission in relaxation of the normal recruitment rules if such person fulfills the educational qualification prescribed for the post and is otherwise qualified for Government service, subject to the proviso. Therefore it is apparent that the appointment on compassionate ground under dying-in-harness rules is to be made in accordance with the normal recruitment rules, however subject to relaxation provided under the Dying-in-Harness Rules, 1974 so that he / she will not have to face the rigours of appointment and wait for vacancy to be notified.

25. The relevant service rule of the department for appointment is 'The Uttar Pradesh Civil Aviation Department (Operation Unit) Recruitment Rules, 2001' framed in exercise of powers conferred by the Proviso to Article 309 of the Constitution and in supervision of The Uttar Pradesh State Civil Aviation Administrative Service Rules, 1992 together with all existing rules and orders on the subject regulating recruitment and the conditions of service of persons appointed to the Uttar Pradesh Civil Aviation Department (Operation Unit).

26. Rule 2 (b) of the said rules 2001provides that the 'Appointing Authority' in relation to a post specified in appendix 'A' and appendix 'B' means the authority mentioned as such against each posts in column 5 of the said appendix. Rule 2 (c) provides 'Appointment on Contract' means an appointment made on contract basis in accordance with these rules and if there were no rules, in accordance with procedure prescribed for the time being by executive instructions, issued by the Government.

27. Sub-rule (2) of Rule 4 of Rules 2001 provides that the Recruitment to various categories of posts specified in Appendix 'B', shall be made on contract basis. Rule 6 provides that A candidate for recruitment to a post specified in appendix 'B' must possess the qualifications prescribed for the post in Appendix 'C'. Rule 12 provides the procedure for recruitment. Rule 12 (1)(c) provides the procedure for recruitment for the posts other than Pilot on contract basis.

28. Rule 13 of Rules 2001 provides the Appointment which is reproduced as under:-

"13. (1) The appointing authority shall make appointment on contract basis or on transfer of service basis, as the case may be, by taking the names of candidates in the order in which they stand in the list prepared under rule 12.

(2) The appointment shall be made initially for a period not more than five years, but the said period may be extended by the appointing authority on request so made by the persons appointed on contract basis or on transfer of service basis, as the case may be in accordance with the orders of the Government in force at such time."

29. In view of above, it is apparent that the appointment under the rules can be made only on contract basis or on transfer of service basis. There is no provision of appointment on regular basis in service Rules 2001 on any post.

30. The petitioner has been appointed on the post of clerk. The appointing authority of the post of clerk is

Additional Director (Administration) as provided at serial no.3 of Appendix 'B'. The Appendix 'B' is the details of posts and remuneration admissible to various posts meant for recruitment on 'contract basis'. Appendix 'C' provides essential qualification. The essential qualification for the post of clerk has been provided at serial no.3 in the appendix 'C', which is reproduced as under:-

"3. Essential qualification for the post of Clerk-

(a) Must have passed Intermediate Examination of the Board of High School and Intermediate Education, Uttar Pradesh or an examination recognized by the Government as equivalent thereto.

(b) Must possess a minimum speed of twenty-five words per minute in Hindi typewriting."

31. The validity of the Rules 2001 was challenged before this Court in Writ Petition No.887 (S/B) of 2002; Captain Anjit Singh Vs. State of U.P and Another and the same has been upheld by this Court and the writ petition was dismissed by means of the judgment and order dated 06.06.2002. The relevant portion is reproduced as under:-

"In view of the aforesaid legal position neither re-organization / restructuring of the Civil Aviation Department by the Government Order dated 08.06.2001 is arbitrary nor illegal. As far as the challenge to the U.P. Civil Aviation Department (Operation Unit) Recruitment Rules, 2001 is concerned, the same have been framed by the Governor in exercise of the powers conferred by the Proviso to Article 309 of the Constitution of India. There is no illegally in the Rules and it cannot be said that the Rules are unconstitutional or illegal. The petitioner has also challenged the amendments made in the Police Act by the Police (Uttar Pradesh Amendment) Act, 2001 (U.P. Act No.33 of 2001) but it has not been shown as to how and under what circumstance the petitioner who is a pilot is likely to be affected by the said amendments. By mere challenging the amendments in the Act, it cannot be said that the amendments in the Police Act is ultra virus of the Constitution.

The writ petition is devoid of merits. It is accordingly rejected at the admission stage."

32. The petitioner has been appointed on the post of clerk on an initial fixed salary of Rs.4500/- per month by the Additional Director (Administration) by means of the order dated 13.10.2006 in view of his qualification as prescribed in the aforesaid Rules under Dying-in-Harness Rules, 1974 and Rule 5 of the third Amendment Rule, 1993 readwith the concerned Service Rules, 2001 in accordance with law as the appointment under the dying-in-harness is to be made in relaxation of normal recruitment rules. In the case in hand the normal recruitment rule is Rules 2001. Therefore it can not be said that the appointment on compassionate ground is only under Rules 1974 and it can not be treated under normal recruitment Rules 2001.

33. The object of the appointment on compassionate ground under dying-in-harness rules is to enable the family to get over the financial crises which it faces at the time of death of the sole bread earner but it can not be claimed as a matter of right. The compassionate appointment is an exception to the general provision.

34. The Hon'ble Apex Court in the case of Director of Education (Secondary) and Another Vs. Pushpendra Kumar and Others; (1998) 5 SCC 192 has held that a provision for compassionate appointment is made for giving gainful appointment to one of the dependents of the deceased who may be eligible for such appointment. Such a provision makes a departure from the general provision providing for appointment on the post by following a particular procedure. Since such a provision enables appointment being made without following the said procedure therefore it is in the nature of an exception to the general provision. An exception can not substitute the main provision to which it is an exception and thereby nullify the main provision by taking away completely its right conferred by the main provision.

35. In the case of National Hydro Electric Power Corporation and Another Vs. Nanak Chand and Another; AIR 2005 SC 106, the Hon'ble Apex Court has held that it is to be seen that the appointment on compassionate ground is not a source of recruitment but merely an exception to the requirement regarding appointments being made on open invitation of application on merits with the basic intention that on the death of the employee concerned his family is not deprived of the means of livelihood.

36. In the case of Commissioner of Public Instructions and Others Vs. K.R. Vishwanath; (2005) 7 SCC 206, the Hon'ble Apex Court has held that the appointment on compassionate ground can not be claimed as a matter of right and High Court and Administrative Tribunal can not confer benediction impelled by sympathetic consideration to make appointments on compassionate ground when the regulation framed in respect thereof do not cover and contemplate such appointments. It has further been held that it is in the nature of exception to the general provisions. It can not substitute a provision to which it is an exception and thereby nullify the main provision by taking away completely its right conferred by the main provision.

37. In the case of State of Jammu & Kashmir and Others Vs. Sajjad Ahmed Mir; (2006) 5 SCC 766, the Hon'ble Apex Court held that once it is proved that in spite of death of bread earner the family survived and substantial period is over, there is no necessity to say good bye to the normal rule of appointment.

38. In the case of V. Shivamurthi Vs. State of Andhra Pradesh and Others; (2008) 13 SCC 730, the Hon'ble Apex Court formulated the principles regarding compassionate appointment which are reproduced as under:-

(a) Compassionate appointment based only on descent is impermissible. Appointments in public service should be made strictly on the basis of open invitation of applications and comparative merit, having regard to Articles 14 and 16 of the Constitution of India. Though no other mode of appointment is permissible, appointments on compassionate grounds are well recognized exception to the said general rule, carved out in the interest of justice to meet certain contingencies.

(b) Two well recognized contingencies which are carved out as exceptions to the general rule are :

(i) appointment on compassionate grounds to meet the sudden crisis occurring in a family on account of the death of the bread-winner while in service.

(ii) appointment on compassionate ground to meet the crisis in a family on account of medical invalidation of the bread winner.

Another contingency, though less recognized, is where land holders lose their entire land for a public project, the scheme provides for compassionate appointment to members of the families of project affected persons. (Particularly where the law under which the acquisition is made does not provide for market value and solatium, as compensation).

(c) Compassionate appointment can neither be claimed, nor be granted, unless the rules governing the service permit such appointments. Such appointments shall be strictly in accordance with the scheme governing such appointments and against existing vacancies.

(d) Compassionate appointments are permissible only in the case of a dependant member of family of the employee concerned, that is spouse, son or daughter and not other relatives. Such appointments should be only to posts in the lower category, that is, class III and IV posts and the crises cannot be permitted to be converted into a boon by seeking employment in Class I or II posts.

Paragraph 'c' above specifically provides that such appointment shall be strictly in accordance with the scheme governing such appointment and against existing vacancies.

39. In the case of Union of India and Another Vs. Sashank Goswami and Another; (2012) 11 SCC 307, the Hon'ble Apex Court has held that the appointments on compassionate ground have to be made in accordance with the rules and regulation or administrative instructions taking into consideration the financial condition of the family of the deceased. The relevant paragraph is reproduced as under:-

"10. As a rule public service appointment should be made strictly on the basis of open invitation of applications and merit. The appointment on compassionate ground is not another source of recruitment but merely an exception to the aforesaid requirement taking into consideration the fact of the death of the employee while in service leaving his family without any means of livelihood. In such cases the object is to enable the family to get over sudden financial crisis and not to confer a status on the family. Thus, applicant cannot claim appointment in a particular class/group of post. Appointments on compassionate ground have to be made in accordance with the rules, regulations or administrative instructions taking into consideration the financial condition of the family of the deceased."

40. In view of above, the appointment under dying-in-harness rules is to be made in accordance with the concerned service rule i.e Rules 2001 in the case in hand, subject to the relaxation and procedure as provided under Rules 1974 and without following the due process of law. Once the concerned service Rule 2001 provides the nature of appointment on contract basis, the petitioner can not be appointed on regular basis because this would also be in violation of Article 14 and 16 of the Constitution of India as the persons appointed through regular mode of appointment under the rule can not be on regular basis as there is no post in the department on regular basis. Therefore the petitioner has rightly been appointed on contractual basis on fixed remuneration in accordance with law. However her compassionate appointment on contract basis is liable to be extended and remuneration revised time to time as per rules and decision of the Government.

41. The judgments relied by the learned counsel for the petitioner are not applicable on the facts and circumstances of the present case. The writ petition is misconceived and lacks merit.

42. The writ petition is, accordingly, dismissed.

43. No order as to cost.

Order Date :- 07.05.2019                           (Rajnish Kumar, J.)
 
Haseen U.